A victory for Ford and the rule of law

The Divisional Court’s judgment is almost certainly the end of the Toronto mayor’s legal saga

Few in the Canadian legal community gave Rob Ford and his lawyer Alan Lecnzner much chance of overturning Justice Charles Hackland’s Nov. 26 judgment removing him from office. However, Lenczner’s advocacy secured a victory for Ford and the rule of law, which is almost certain to prove decisive.

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The keystone of the Divisional Court’s judgment is its interpretation of Section 160(5) of the City of Toronto Act. Refreshingly, reference was made to the French version of the statute, which makes clear that Toronto City Council has the power to impose only two sanctions on its elected representatives for breaches of its Code of Conduct: a reprimand or a suspension of pay for up to 90 days. However, the Code of Conduct provides for additional sanctions, one of which was the basis for the demand for reimbursement made against Ford in 2010.

Once the Divisional Court reached the conclusion that council had no power to impose this punitive measure, its 2010 resolution had to be treated as a nullity. Ford’s vote in early 2012 to repeal the 2010 resolution could not therefore be problematic. It was a vote with no legal effect once the Divisional Court demolished the legal basis for the 2010 resolution.

Ford’s opponent, Paul Magder, represented by Clayton Ruby, argued that Ford should have been barred by the doctrine of collateral attack from raising an objection to the 2010 resolution at this late stage: He had ample time to seek judicial review of the resolution if he considered it lacked a legal basis. However, taking account of the “very severe penalty” of removal from office, the Divisional Court rightly permitted Ford to challenge the validity of the 2010 resolution. Otherwise, a democratically elected mayor would have been removed from office essentially on the basis of a resolution that council had no authority to pass. Such a result would have done violence to the rule of law.

Although the Divisional Court found in favour of Ford, it adopted much of Justice Hackland’s reasoning. Had it not been for the illegality of the 2010 resolution, Ford would have had a disqualifying “pecuniary interest” within the meaning of the Municipal Conflict of Interest Act. According to the Divisional Court, a significant financial sanction levied against a councillor can trigger the statute, and the $3,150 at issue here satisfied the significance threshold. The Divisional Court also maintained a narrow scope for the defence of good faith error of judgment by requiring a demonstration that “reasonable steps to inquire into … legal obligations” had been taken. It did not interfere with Justice Hackland’s adverse findings of fact on this point.

However, Justice Hackland’s reasoning was not adopted in its entirety. The imprints of the rule of law can also be found on the Divisional Court’s distinction between speaking in one’s defence and voting on the implementation of a financial sanction. The Municipal Conflict of Interest Act was construed by Justice Hackland as preventing a councillor from putting arguments to the chamber where there is a possibility of a financial sanction — a violation of procedural fairness. The Divisional Court tried to minimize the violation by asserting that a “real financial interest” must have “crystallized” before a councillor can be prevented from contributing to a debate. When Ontario’s legislators return to Queen’s Park, they would do well to consider the Divisional Court’s unease with these “draconian” provisions and amend them to ensure that councillors are treated fairly.

Whatever the political ramifications, the Divisional Court’s judgment is almost certainly the end of the legal saga. The Supreme Court of Canada has a very limited power to entertain any appeal. Based on s. 40(1) of the Supreme Court Act, it could grant leave based on the “public importance” of the case or the importance of the legal issues involved. However, as Ruby and Magder have themselves already said publicly, the Divisional Court’s decision turns on a “technicality,” a very narrow question of statutory interpretation. Even if they can construct an argument of “public importance,” it is hard to imagine the Supreme Court allowing uncertainty to surround the mayoralty of Canada’s largest city while the case is briefed, argued and considered, a process that would take at least several months.
Financial Post

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